Cure Worse Than Curse

The recent incident in which Italian military killed two Indian fishermen off coast of Kerala questions the very rationale of deploying armed guards on merchant ships.

Armed guards cure is worse than piracy curse

The killing of two fishermen off the Kerala coast last week by naval guards on an Italian ship, mistaking them for pirates, questions the very rationale of deploying armed guards on merchant ships.

In fact, many had raised concerns over possible unintended actions of the armed men onboard, even before the International Maritime Organisation (IMO) approved ship owners hiring private security guards as a measure to counter the growing menace of piracy in the Indian Ocean.

Their fears have proved true; the remedy is causing more worries to the ship owner than the disease itself as is seen in the Kerala incident. Keeping aside the emotional outcry of people from both countries, the fact is that two fishermen were killed by guards deployed to safeguard the ship.

The incident has taken a different dimension as the armed men on the tankerEnrica Lexieare serving Italian naval officers. The Italian Government has directly intervened in the case. Diplomatic parleys are also being held to sort out the issue. There are divergent views on whether India has the jurisdiction to arrest the accused and investigate the case. The Italian side asserts that the Kerala police do not have jurisdiction to investigate the incident as it took place in international waters. But legal experts affirm that India has the right to pursue the case under the UN Convention of the Law of the Sea.

The ship has been held up at Kochi port for more than 10 days. For the owner, the cost of safeguarding the ship from pirates could prove to be too expensive. What had actually happened in the mid-sea will be clear only after the police and other agencies complete their investigations. The matter is now in court and law will take its due course.

Where does the buck stop?

However, the incident has shifted the spotlight on to the fundamental issue of whether merchant ships should have armed guards on board. The IMO in 2011 issued guidelines on engagement of privately contracted security men on merchant ships as the menace of piracy became a major threat to shipping lines. In fact, IMO and the International Chamber of Shipping do not see armed guards as a solution to piracy.

The IMO guidelines state: “The use of privately contracted armed security personnel should not be considered as an alternative to the best management practices to deter piracy off the coast of Somalia and in the Arabian Sea area. Placing armed guards on board as a means to secure and protect the vessel and its crew should only be considered after a risk assessment has been carried out.”

An important issue is the procedure to be followed by armed men before using their weapons. Can guards open fire without the permission of the ship’s captain? Mr Abdulgani Sarang, General Secretary of the National Union of Seafarers of India, said the IMO and the Government of India guidelines on deploying armed guards do not cover this aspect.

“Who is the final authority on board a ship? Is it the captain or the guard?” asks Mr Sarang.

Indian Government guidelines state that “the command and control structure between the master and the armed security guards must be clearly defined and documented. The security team on board must completely understand and comply with the rules for the use of force as agreed between the ship-owner, master and private maritime security companies.”

Striking balance

Mr Stephen Askins of the London-based international law firm Ince & Company, who is involved in drafting a new armed guards contract for the Baltic and International Maritime Council (BIMCO), says one of the big issues is the master authority point and one that had to be discussed at length.

“It is right that he (master) has overall authority but he is not an expert in security. A balance needs to be drawn so that he retains control but is not tainted by any wrongdoing of the security team,” Mr Askins said responding to a report inBusiness Lineon the subject.

“The regime then is that a potential threat is perceived, for example, by way of a suspicious ship and after discussing this with the master the team leader can then invoke the Rules for the Use of Force. They would have been discussed beforehand and the master will understand the stages to be adopted.

“They are a graduated layered response escalating whereby lethal force is the last resort. The team leader can then take responsibility for the defence of the ship without continuous reference to the master.”

Some masters will want to be more involved in the decision process than others. In some cases, the crew and master will be in the citadel hidden from the pirates. In that case the master may not be able to follow the events.

Involve local communities

“It is right that a master is in control and if he considers there is danger to the crew or environment, he has the right (enshrined in SOLAS) to order a cease fire. At that point (and I talk as an English lawyer) the individual will still have a right of self-defence, which he will have to justify after the event in accordance with the applicable national laws, i.e., flag state or of the territorial seas he is in,” Mr Askins adds.

The BIMCO document, which is expected to be ready by March, could become the benchmark for the industry. Meanwhile, the focus is also being turned on to find a lasting solution to Somalian piracy. At a London conference on piracy and Somalia it was agreed that that piracy cannot be solved by military means alone. It reiterated the importance of supporting local communities to tackle the underlying causes of piracy, undermining the pirate economy and its associated financial model and improving effective use of Somali coastal waters through regional maritime capacity-building measures.

The International Maritime Organisation and International Chamber of Shipping do not see armed guards as a solution.

Source: Business Line

(This article was originally published in the Business Line print edition dated February 27, 2012)